Title I Technical Assistance Manual

VII. NONDISCRIMINATION IN OTHER EMPLOYMENT PRACTICES

7.1 Introduction

The nondiscrimination requirements of the ADA apply to all employment practices and activities. The preceding chapters have explained these requirements as they apply to job qualification and selection standards, the hiring process, and medical examinations and inquiries. This chapter discusses the application of nondiscrimination requirements to other employment practices and activities.

In most cases, an employer need only apply the basic nondiscrimination principles already emphasized; however, there are also some special requirements applicable to certain employment activities. This chapter discusses:

• the ADA's prohibition of discrimination on the basis of a relationship or association with an individual with a disability;

• nondiscrimination requirements affecting:

  • promotion, assignment, training, evaluation, discipline, advancement opportunity and discharge;

  • compensation, insurance, leave, and other benefits and privileges of employment; and

  • contractual relationships.

7.2 Overview of Legal Obligations

• An employer may not discriminate against a qualified individual with a disability because of the disability, in any employment practice, or any term, condition or benefit of employment.

• An employer may not deny an employment opportunity because an individual, with or without a disability, has a relationship or association with an individual who has a disability.

• An employer may not participate in a contractual or other arrangement that subjects the employer's qualified applicant or employee with a disability to discrimination.

• An employer may not discriminate or retaliate against any individual, whether or not the individual is disabled, because the individual has opposed a discriminatory practice, filed a discrimination charge, or participated in any way in enforcing the ADA.

7.3 Nondiscrimination in all Employment Practices

The ADA prohibits discrimination against a qualified individual with a disability on the basis of disability in the following employment practices:

• Recruitment, advertising, and job application procedures;

• Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

• Rates of pay or any other form of compensation, and changes in compensation;

• Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;

• Leaves of absence, sick leave, or any other leave;

• Fringe benefits available by virtue of employment, whether or not administered by the covered entity;

• Selection and financial support for training, including: apprenticeships, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training;

• Activities sponsored by a covered entity including social and recreational programs; and

• Any other term, condition, or privilege of employment.

Nondiscrimination, as applied to all employment practices, means that:

• an individual with a disability should have equal access to any employment opportunity available to a similarly situated individual who is not disabled;

• employment decisions concerning an employee or applicant should be based on objective factual evidence about the particular individual, not on assumptions or stereotypes about the individual's disability;

• the qualifications of an individual with a disability may be evaluated on ability to perform all job-related functions, with or without reasonable accommodation. However, an individual may not be excluded from a job because a disability prevents performance of marginal job functions;

• an employer must provide a reasonable accommodation that will enable an individual with a disability to have an equal opportunity in every aspect of employment, unless a particular accommodation would impose an undue hardship;

• an employer may not use an employment practice or policy that screens out or tends to screen out an individual with a disability or a class of individuals with disabilities, unless the practice or policy is job related and consistent with business necessity and the individual cannot be accommodated without undue hardship;

• an employer may not limit, segregate, or classify an individual with a disability in any way that negatively affects the individual in terms of job opportunity and advancement;

• an individual with a disability should not because of a disability be treated differently than a similarly situated individual in any aspect of employment, except when a reasonable accommodation is needed to provide an equal employment opportunity, or when another Federal law or regulation requires different treatment.

These requirements are discussed in this chapter as they apply to various employment practices. The prohibition against retaliation is discussed in Chapter X.

7.4 Nondiscrimination and Relationship or Association with an Individual with a Disability

The ADA specifically provides that an employer or other covered entity may not deny an employment opportunity or benefit to an individual, whether or not that individual is disabled, because that individual has a known relationship or association with an individual who has a disability. Nor may an employer discriminate in any other way against an individual, whether or not disabled, because that individual has such a relationship or association.

The term "relationship or association" refers to family relationships and any other social or business relationship or association. Therefore, this provision of the law prohibits employers from making employment decisions based on concerns about the disability of a family member of an applicant or employee, or anyone else with whom this person has a relationship or association.

For example: An employer may not:

• refuse to hire or fire an individual because the individual has a spouse, child, or other dependent who has a disability. The employer may not assume that the individual will be unreliable, have to use leave time, or be away from work in order to care for the family member with a disability;

• refuse to hire or fire an individual because s/he has a spouse, child or other dependent who has a disability that is either not covered by the employer's current health insurance plan or that may cause future increased health care costs;

• refuse to insure, or subject an individual to different terms or conditions of insurance, solely because the individual has a spouse, child, or other dependent who has a disability;

• refuse to hire or fire an individual because the individual has a relationship or association with a person or persons who have disabilities.

For example: an employer cannot fire an employee because s/he does volunteer work with people who have AIDS.

This provision of the law prohibits discrimination in employment decisions concerning an individual, whether the individual is or is not disabled, because of a known relationship or association with an individual with a disability. However, an employer is not obligated to provide a reasonable accommodation to a nondisabled individual, because this person has a relationship or association with a disabled individual. The obligation to make a reasonable accommodation applies only to qualified individuals with disabilities.

For example: The ADA does not require that an employer provide an employee who is not disabled with a modified work schedule as an accommodation, to enable the employee to care for a spouse or child with a disability.

7.5 Nondiscrimination and Opportunity for Advancement

The nondiscrimination requirements that apply to initial selection apply to all aspects of employment, including opportunities for advancement. For example, an employer may not discriminate in promotion, job classification, evaluation, disciplinary action, opportunities for training, or participation in meetings and conferences. In particular, an employer:

• should not assume that an individual is not interested in, or not qualified for, advancement because of disability;

• should not deny a promotion because of the need to make an accommodation, unless the accommodation would cause an undue hardship;

• should not place individuals with disabilities in separate lines of progression or in segregated units or locations that limit opportunity for advancement;

• should assure that supervisors and managers who make decisions regarding promotion and advancement are aware of ADA nondiscrimination requirements.

7.6 Training

Employees with disabilities must be provided equal opportunities to participate in training to improve job performance and provide opportunity for advancement. Training opportunities cannot be denied because of the need to make a reasonable accommodation, unless the accommodation would be an undue hardship. Accommodations that may be necessary, depending on the needs of particular individuals, may include:

• accessible locations and facilities for people with mobility disabilities;

• interpreters and note-takers for employees who are deaf;

• materials in accessible formats and/or readers for people who are visually impaired, for people with learning disabilities, and for people with mental retardation;

• if audiovisual materials are used, captions for people who are deaf, and voice-overs for people who are visually impaired;

• good lighting on an interpreter, and good general illumination for people with visual impairments and other disabilities;

• clarification of concepts presented in training for people who have reading or other disabilities;

• individualized instruction for people with mental retardation and certain other disabilities.

If an employer contracts for training with a training company, or contracts for training facilities such as hotels or conference centers, the employer is responsible for assuring accessibility and other needed accommodations.

It is advisable that any contract with a company or facility used for training include a provision requiring the other party to provide needed accommodations. However, if the contractor does not do so, the employer remains responsible for providing the accommodation, unless it would cause an undue hardship.

For example: Suppose a company with which an employer has contracted proposes to conduct training at an inaccessible location. The employer is responsible for providing an accommodation that would enable an employee who uses a wheelchair to obtain this training. The employer might do this by: requiring the training company to relocate the program to an accessible site; requiring the company to make the site (including all facilities used by trainees) accessible; making the site accessible or providing resources that enable the training company to do so; contracting with another training company that uses accessible sites; or providing any other accommodation (such as temporary ramps) that would not impose an undue hardship. If it is impossible to make an accommodation because the need is only discovered when an employee arrives at the training site, the employer may have to provide accessible training at a later date.

Or, for example: An employer contracts with a hotel to hold a conference for its employees. The employer must assure physical and communications accessibility for employees with disabilities, including accessibility of guest rooms and all meeting and other rooms used by attendees. The employer may assure accessibility by inspecting the site, or may ask a local disability group with accessibility expertise (such as an Independent Living Center) to do so. The employer remains responsible for assuring accessibility. However, if the hotel breaches a contract provision requiring accessibility, the hotel may be liable to the employer under regular (non-ADA) breach of contract law. The hotel also may be liable under Title III of the ADA, which requires accessibility in public accommodations.

7.7 Evaluations, Discipline and Discharge

• An employer can hold employees with disabilities to the same standards of production/performance as other similarly situated employees without disabilities for performing essential job functions (with or without reasonable accommodation).

• An employer also can hold employees with disabilities to the same standards of production/performance as other employees regarding marginal job functions, unless the disability affects the ability to perform these marginal functions. If the ability to perform marginal functions is affected by the disability, the employer must provide some type of reasonable accommodation such as job restructuring (unless to do so would be an undue hardship).

• A disabled employee who needs an accommodation (that is not an undue hardship for an employer) in order to perform a job function should not be evaluated on his/her ability to perform the function without the accommodation, and should not be downgraded because such an accommodation is needed to perform the function.

• An employer should not give employees with disabilities "special treatment." They should not be evaluated on a lower standard or disciplined less severely than any other employee. This is not equal employment opportunity.

• An employer must provide an employee with a disability with reasonable accommodation necessary to enable the employee to participate in the evaluation process (for example, counseling or an interpreter).

• If an employee with a disability is not performing well, an employer may require medical and other professional inquiries that are job-related and consistent with business necessity to discover whether the disability is causing the poor performance, and whether any reasonable accommodation or additional accommodation is needed. (See Chapter VI.)

• An employer may take the same disciplinary action against employees with disabilities as it takes against other similarly situated employees, if the illegal use of drugs or alcohol use affects job performance and/or attendance. (See Chapter VIII.)

• An employer may not discipline or terminate an employee with a disability if the employer has refused to provide a requested reasonable accommodation that did not constitute an undue hardship, and the reason for unsatisfactory performance was the lack of accommodation.

7.8 Compensation

• An employer cannot reduce pay to an employee with a disability because of the elimination of a marginal job function or because it has provided a reasonable accommodation, such as specialized or modified equipment. The employer can give the employee with a disability other marginal functions that s/he can perform.

• An employee who is reassigned to a lower paying job or provided a part-time job as an accommodation may be paid the lower amount that would apply to such positions, consistent with the employer's regular compensation practices.

7.9 Health Insurance and Other Employee Benefit Plans

As discussed above, an employer or other covered entity may not limit, segregate or classify an individual with a disability, on the basis of disability, in a manner that adversely affects the individual's employment. This prohibition applies to the provision and administration of health insurance and other benefit plans, such as life insurance and pension plans.

This means that:

• If an employer provides insurance or other benefit plans to its employees, it must provide the same coverage to its employees with disabilities. Employees with disabilities must be given equal access to whatever insurance or benefit plans the employer provides.

• An employer cannot deny insurance to an individual with a disability or subject an individual with a disability to different terms or conditions of insurance, based on disability alone, if the disability does not pose increased insurance risks. Nor may the employer enter into any contract or agreement with an insurance company or other entity that has such effect.

• An employer cannot fire or refuse to hire an individual with a disability because the employer's current health insurance plan does not cover the individual's disability, or because the individual may increase the employer's future health care costs.

• An employer cannot fire or refuse to hire an individual (whether or not that individual has a disability) because the individual has a family member or dependent with a disability that is not covered by the employer's current health insurance plan, or that may increase the employer's future health care costs.

While establishing these protections for employees with disabilities, the ADA permits employers to provide insurance plans that comply with existing Federal and state insurance requirements, even if provisions of these plans have an adverse affect on people with disabilities, provided that the provisions are not used as a subterfuge to evade the purpose of the ADA.

Specifically, the ADA provides that:

• Where an employer provides health insurance through an insurance carrier that is regulated by state law, it may provide coverage in accordance with accepted principles of risk assessment and/or risk classification, as required or permitted by such law, even if this causes limitations in coverage for individuals with disabilities.

• Similarly, self-insured plans which are not subject to state law may provide coverage in a manner that is consistent with basic accepted principles of insurance risk classification, even if this results in limitations in coverage to individuals with disabilities.

In each case, such activity is permitted only if it is not being used as a subterfuge to evade the intent of the ADA. Whether or not an activity is being used as a subterfuge will be determined regardless of the date that the insurance plan or employee benefit plan was adopted.

This means that:

• An employer may continue to offer health insurance plans that contain pre-existing condition exclusions, even if this adversely affects individuals with disabilities, unless these exclusions are being used as a subterfuge to evade the purpose of the ADA.

• An employer may continue to offer health insurance plans that limit coverage for certain procedures, and/or limit particular treatments to a specified number per year, even if these restrictions adversely affect individuals with disabilities, as long as the restrictions are uniformly applied to all insured individuals, regardless of the disability.

For example, an employer can offer a health insurance plan that limits coverage of blood transfusions to five transfusions per year for all employees, even though an employee with hemophilia may require more than five transfusions per year. However, the employer could not deny this employee coverage for another, otherwise covered procedure, because the plan will not pay for the additional blood transfusions that the procedure would require.

An employer may continue to offer health insurance plans that limit reimbursements for certain types of drugs or procedures, even if these restrictions adversely affect individuals with disabilities, as long as the restrictions are uniformly applied without regard to disability.

For example, an employer can offer a health insurance plan that does not cover experimental drugs or procedures, as long as this restriction is applied to all insured individuals.

7.10 Leave

• An employer may establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave.

• An employer may be required to make adjustments in leave policy as a reasonable accommodation. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave. (See Chapter III.)

• A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his/her disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship.

For example: If an employer has a policy providing 2 weeks paid leave for all employees, with no other provision for sick leave and a "no leave" policy for the first 6 months of employment, an employee with a disability who cannot get leave for needed medical treatment could not successfully charge that the employer's policy is discriminatory on its face. However, this individual could request leave without pay or advance leave as a reasonable accommodation. Such leave should be provided, unless the employer can show undue hardship: For example, an employer might be able to show that it is necessary for the operation of the business that this employee be available for the time period when leave is requested.

• An employer is not required to give leave as a reasonable accommodation to an employee who has a relationship with an individual with a disability to enable the employee to care for that individual. (See p. 8 above.)

7.11 Contractual or Other Relationships

An employer may not do anything through a contractual relationship that it cannot do directly. This applies to any contracts, including contracts with:

• training organizations (see above);

• insurers (see above);

• employment agencies and agencies used for background checks (see Chapter V);

• labor unions (see below).

7.11(a)Collective Bargaining Agreements

Labor unions are covered by the ADA and have the same obligation as the employer to comply with its requirements. An employer also is prohibited by the ADA from taking any action through a labor union contract that it may not take itself.

For example: If a union contract contained physical requirements for a particular job that screened out people with disabilities who were qualified to perform the job, and these requirements are not job-related and consistent with business necessity, they could be challenged as discriminatory by a qualified individual with a disability.

The terms of a collective bargaining agreement may be relevant in determining whether a particular accommodation would cause an employer undue hardship.

For example: If the collective bargaining agreement reserves certain jobs for employees with a given amount of seniority, this may be considered as a factor in determining whether it would be an undue hardship to reassign an individual with a disability who does not have seniority to a vacant job.

Where a collective bargaining agreement identifies functions that must be performed in a particular job, the agreement, like a job description, may be considered as evidence of what the employer and union consider to be a job's essential functions. However, just because a function is listed in a union agreement does not mean that it is an essential function. The agreement, like the job description, will be considered along with other types of evidence. (See Chapter II.)

The Congressional Committee Reports accompanying the ADA advised employers and unions that they could carry out their responsibilities under the Act, and avoid conflicts between the bargaining agreement and the employer's duty to provide reasonable accommodation, by adding a provision to agreements negotiated after the effective date of the ADA, permitting the employer to take all actions necessary to comply with the Act.

7.12 Nondiscrimination in Other Benefits and Privileges of Employment

Nondiscrimination requirements, including the obligation to make reasonable accommodation, apply to all social or recreational activities provided or conducted by an employer, to any transportation provided by an employer for its employees or applicants, and to all other benefits and privileges of employment.

This means that:

• Employees with disabilities must have an equal opportunity to attend and participate in any social functions conducted or sponsored by an employer. Functions such as parties, picnics, shows, and award ceremonies should be held in accessible locations, and interpreters or other accommodation should be provided when necessary.

• Employees with disabilities must have equal access to break rooms, lounges, cafeterias, and any other non-work facilities that are provided by an employer for use by its employees.

• Employees with disabilities must have equal access to an exercise room, gymnasium, or health club provided by an employer for use by its employees. However, an employer would not have to eliminate facilities provided for employees because a disabled employee cannot use certain equipment or amenities because of his/her disability. For example, an employer would not have to remove certain exercise machines simply because an employee who is a paraplegic could not use them.

• Employees with disabilities must be given an equal opportunity to participate in employer-sponsored sports teams, leagues, or recreational activities such as hiking or biking clubs. However, the employer does not have to discontinue such activities because a disabled employee cannot fully participate due to his/her disability. For example, an employer would not have to discontinue the company biking club simply because a blind employee is unable to ride a bicycle.

• Any transportation provided by an employer for use by its employees must be accessible to employees with a disability. This includes transportation between employer facilities, transportation to or from mass transit and transportation provided on a occasional basis to employer-sponsored events.